23 February 2025

Chapter 9:   RELATIONS WITH OTHER ORGANS AND ENTITIES

Section 1:   General Assembly

(c) Special sessions of the General Assembly

Draft resolutions on Ukraine to be voted upon in GA and Security Council on same day raise Charter issues

On Tuesday, 18 February 2025, a draft resolution on Ukraine (A/ES-11/L.10), co-sponsored by 53 General Assembly members, was issued with the intention that it be voted upon on Monday, 24 February – the anniversary of the Russian invasion of Ukraine – at a resumption of the Assembly’s Eleventh Emergency Special Session (ES-11). The draft, having twelve preambular paragraphs and ten operative paragraphs, is slightly longer than the most recent resolution adopted on Ukraine at a resumption of ES-11 on 23 February 2023 (A/RES/ES-11/6), which was co-sponsored by 57 Assembly members.

On Friday, 21 February 2025, three days after the 53-member Assembly draft resolution was issued, a text on Ukraine

(A/ES-11/L.11) drafted by the United States was issued with the intention that it also would be voted upon on 24 February. Also on 21 February, the United States circulated an identical draft resolution on Ukraine intended for adoption by the Security Council and requested that the Council President (China) convene a meeting for this purpose also on the following Monday. To this end, the United States has taken the step of requesting that its draft be put “into blue”, the Council practice by which draft resolutions are prepared for voting. The American draft comprises two preambular paragraphs and one operative paragraph.

On Friday, 21 February, a proposed Russian amendment to the United States draft Assembly resolution was issued

(A/ES-11/L.12) by which a phrase on addressing the “root causes” of what the American draft refers to as “the Russian Federation-Ukraine conflict” would be added to that draft. It was reported that a parallel amendment was proposed by the Russian Federation to the draft the United States was submitting to the Security Council.

Proposing that resolutions on Ukraine be voted upon in the Assembly and the Council on the same day raises several Charter and procedural questions.

1. Would adoption of the American draft in the Security Council mean that the conditions would no longer be met for the Assembly to reconvene in emergency special session to vote on resolutions on the same matter?

The Eleventh Emergency Special Session was first convened on 28 February 2022 in response to resolution 2623 (2022) adopted on 27 February 2022. By that resolution, the Security Council took “into account that the lack of unanimity of its permanent members at the 8979th meeting has prevented it from exercising its primary responsibility for the maintenance of international peace and security” and decided “to call an emergency special session of the General Assembly to examine the question contained in document S/Agenda/8979.”[1] The agenda for the Council’s 8979th meeting was one of the agenda items used by the Council at that time concerning Ukraine: “Letter dated 28 February 2014 from the Permanent Representative of Ukraine to the United Nations addressed to the President of the Security Council (S/2014/136)”.

The language of resolution 2623 (2022) made clear that it was adopted in accordance with the General Assembly’s 1950 “Uniting for Peace” resolution A/RES/377A(V) by which the Assembly

“Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within twenty-four hours of the request therefor. Such emergency special session shall be called if requested by the Security Council on the vote of any seven members,[2] or by a majority of the Members of the United Nations.”[3] (our emphasis)

At first glance, it would seem that if, on 24 February 2025, the Council is able to adopt the American draft on Ukraine, this would mean that the condition set out in “Uniting for Peace” – that the Council failed to exercise its primary responsibility “because of lack of unanimity of the permanent members” – would not be met, and that therefore ES-11 could not be reconvened on that same day. However, there is a precedent strongly suggesting otherwise.

This precedent occurred in 2009. The Assembly’s Tenth Emergency Special Session (ES-10) was first convened after two draft resolutions on Israeli settlements in the occupied Palestinian territory had been vetoed in the Council on 7 and 21 March 1997. The Chairman of the Arab Group then requested that an emergency special session of the General Assembly be convened pursuant to the “Uniting for Peace” resolution, with a view to discussing “Illegal Israeli actions in occupied East Jerusalem and the rest of the occupied Palestinian territory”. The majority of UN Members having concurred with this request, the first meeting of ES-10 took place on 24 April 1997, and it was reconvened a number of times thereafter.

When, at the request of Malaysia, Syria, and Venezuela, ES-10 was resumed on 15 January 2009, the Israeli representative argued that it was beyond the Assembly’s mandate to reconvene the emergency special session while the Council remained “deeply engaged in this matter” and therefore had not failed to exercise its primary responsibility for the maintenance of international peace and security.

In response, the Under-Secretary-General for General Assembly and Conference Management stated that the Secretariat had sought the advice of the UN’s Office of Legal Affairs, which had given its view that this was not a new emergency special session and that if any Member States requested its resumption, according to paragraph 17 of resolution ES-10/17 of 15 December 2006, the Assembly could meet. In that paragraph, the Assembly had decided to adjourn ES-10 temporarily and to authorize the Assembly President to resume the special session upon request from Member States. Such requests having been received, the President ruled that the meeting should continue (A/ES-10/PV.32).

In the case of the Eleventh Emergency Special Session on Ukraine, the most recent resolution, A/RES/ES-11/6, adopted on 23 February 2023, closed with a paragraph similar in language to the resolution cited in the above 2009 case:

“Decides to adjourn the eleventh emergency special session of the General Assembly temporarily and to authorize the President of the General Assembly to resume its meetings upon request from Member States.”

One might argue that in 2009, the Israeli representative claimed merely that the Council was “deeply engaged” in the matter, whereas on 24 February 2025, there exists the possibility that the Council might adopt a specific decision. However, neither the closing paragraph of the 2009 Assembly resolution, nor that of the 2023 resolution, sets out any conditions other than a request by Member States. Therefore, from the advice of the Office of Legal Affairs and the ES-10 precedent of 2009, the conclusion can be drawn that for the Assembly to reconvene ES-11 does not require that the condition of failure in the Council – which was originally necessary for invoking “Uniting for Peace” with respect to Ukraine in 2022 – need be present again on 24 February 2025. Rather, in line with the 2009 case, the request by Member States would be sufficient. And such a request, citing paragraph 11 of resolution A/RES/ES-11/6, was made by Poland and Ukraine on 17 February 2025 (A/ES-11/119).

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2. Does Charter Article 12(1) – which imposes a limitation on the Assembly’s right to make recommendations while the Council is “exercising in respect of any dispute or situation the functions assigned to it” in the Charter unless the Council so requests – mean that the Assembly cannot vote on any Ukraine drafts on 24 February 2025 if the Council is voting on a Ukraine draft on the same day?

As stated in the book, “The fact that a matter has been referred by the Council to the Assembly does not eliminate the constitutional restraints under which the Assembly has to operate”. These restraints include the limitation imposed by Article 12(1). From the drafting history of this article, it appears that a primary reason for its inclusion in the Charter was to ensure that the Assembly would not adopt resolutions contradictory to decisions by the Council, and thus undercut the Council’s primary responsibility for the maintenance of international peace and security.

Over the UN’s history, at issue with respect to Article 12(1) have been two questions: 1) determining exactly what actions by the Council indicate that it is exercising “the functions assigned to it” and 2) determining exactly what timing applies to the condition of “while the Security Council is exercising . . .” the functions (our emphasis).

The interpretation of these two questions has undergone considerable evolution since the Charter went into effect. The very strict interpretation initially observed by both organs gradually eased, such that in 1964, the UN Legal Counsel noted that

“the General Assembly, beginning in 1960, adopted several resolutions clearly containing recommendations in cases of which the Security Council was then seized and . . . in none of these cases . . . did a member object to the recommendation on the ground of Article 12.”[4]

Four years later, the Legal Counsel opined that the Assembly “had interpreted the words ‘is exercising’ as meaning ‘is exercising’ at this moment.”[5] This statement of the Legal Counsel was cited by the International Court of Justice in its 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.[6] In its opinion, the ICJ noted that “there has been an increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter concerning the maintenance of international peace and security”. It gave as examples, Cyprus, South Africa, Angola, Southern Rhodesia, Bosnia and Herzegovina, and Somalia. The Court added that it considered that the accepted practice of the Assembly, as it had evolved, was consistent with Article 12(1).[7]

In recent practice, while Article 12(1) may occasionally be raised as a question of principle, no cases have occurred of instances where either the Assembly decided it was precluded from adopting resolutions owing to Article 12(1), or the Council contended that the Assembly was so precluded. Of this development Stefanie Schmahl has written,

“it appears that the GA is interpreting the legal consequences of Article 12(1) extremely narrowly…. In this way, the GA succeeded in assuming considerable powers of discretion, which are only marginally limited by Article 12(1). This outcome is hardly compatible with the wording, purpose, and origin of Article 12(1), but it is sustained by State practice and apparently increasingly supported by the ICJ and legal doctrine."[8]

As a practical matter, when the Council and the Assembly are each voting upon a resolution on the same country- or region-specific matter within a relatively close timeframe, in the spirit of Article 12(1) there has generally been an effort to have at least some variation between the two texts. The book notes[9] that the Assembly has made recommendations on such matters as Afghanistan, Cyprus, Bosnia and Herzegovina, Western Sahara, and the Middle East more or less concurrently with consideration by the Council of those matters.

“In such cases, the Assembly has sometimes informally reviewed the substance of draft recommendations under consideration in both bodies. If the aspects of the question being addressed by the Assembly have differed from the aspects under consideration by the Council, the Assembly has gone forward with bringing its draft resolution to a vote.”

Also in the spirit of Article 12(1), when the Council and the Assembly are each voting upon a resolution on the same country- or region-specific matter within a relatively close timeframe, it has been the general practice to sequence one vote prior to the other. To conduct voting on Ukraine resolutions on exactly the same day in both organs, as is proposed for 24 February 2025, would be a greater test of the current highly elastic interpretation of the Article 12(1) wording of “While the Security Council is exercising in respect of any dispute or situation the functions assigned to it” in the Charter (our emphasis). Nonetheless, because the 53-Member resolution is much more detailed and operational than the short and more exhortatory American draft, Member States could argue that the Council is exercising its Charter functions in this particular case in such a narrow way that it leaves room for the Assembly to vote upon a significantly different approach on the same day.

The fact that the United States wishes to bring to a vote its own text in both the Council and the Assembly poses no real technical problem. Regardless of whether each organ will adopt the draft before it, the clear intent is to harmonize the approach of both organs, and it will be recalled that a primary reason for Article 12(1) was to keep differing decisions by the Assembly from undercutting Council decisions. Precedents for bringing identical resolutions to a vote in the Assembly and the Council on the same day, when the intent is to harmonize, exist with respect to the Peacebuilding Commission. In 2005, to establish the Peacebuilding Commission, both the Council and the Assembly adopted virtually identical resolutions.[10] The Council had wanted to adopt an additional measure relating to how the seven seats on the PBC Organizational Committee would be allocated to Council members, but in order to preserve the symmetry of the two organs’ resolutions, the Council did so in a separate resolution adopted at the same meeting. And subsequent reviews of the PBC have been decided by both bodies adopting virtually identical resolutions on the same day.

3. Does the fact that the Council may adopt binding decisions on peace and security matters, whereas Assembly decisions are recommendations, play any role with respect to the resolutions proposed for adoption on 24 February 2025?

It is clear that the 53-member draft resolution contains no language that is not in the nature of a recommendation.

While the only operative paragraph of the American draft appears mostly exhortatory, it poses a unique problem because it uses as one of the operative verbs the word “implores”. This term does not appear in legal dictionaries and has no legal significance. Its usage in everyday speech has such a wide range of definitions that its meaning cannot be determined out of context. Some regular dictionaries suggest that "implores" is somewhat equivalent to “urges” (the verb used in the second half of the draft’s operative paragraph) or “calls upon”, neither of which is generally seen as binding language in Council resolutions unless the context strongly argues otherwise. The American dictionary Merriam-Webster provides, among several definitions for “implore”, “to make an earnest request to (someone)” or “to say (something) as a request in a sincere or urgent manner”. If "implores" is interpreted more along the lines of "requests", this might in some cases come closer to creating an obligation, but this would happen only if steps to be taken are set out, and by whom, which is not the case with the American draft. The press statement issued on behalf of the American Secretary of State on 21 February 2025 is not helpful with the interpretation, in that it states that “Through support of this resolution, we affirm that this conflict is awful, that the UN can help end it, and that peace is possible”, none of which have operational specificity. Thus it remains to be seen whether the anticipated United States statement before or after the vote in the Council will throw light on how the penholder wishes the resolution to be understood. In any event, however, the resolution clearly does not contain any coercion or enforcement language.

Concluding observations

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While the submission of differing draft resolutions for adoption on the same day in the Assembly and the Council has stirred up a number of questions as to intent and outcome, these are essentially political matters. The Charter and procedural issues discussed in this article – relating to reconvening ES-11; submitting to a vote differing draft resolutions in the Assembly and Council on the same day; and the possibility of the Council resolution being binding whereas GA resolutions are recommendations – are not expected to have any decisive impact on these developments. That is, it is not believed that these considerations will either create restraints, or enhance the way forward, for any of the drafts in either of the two organs. Nonetheless, because the scenario is an unusual one, it is important to consider all possible aspects of the Charter and procedural framework within which the Assembly and the Council will be handling these drafts.

(This update supplements pages 574 to 582 of the book.)

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[1] “Convocation of an emergency special session of the General Assembly” is a procedural matter to which the veto does not apply, as determined by consistent Council practice and then recorded, with the agreement of Council members, in the Repertoire of the Practice of the Security Council. In fact, the Russian Federation voted against resolution 2623 (2022), but this did not hinder its adoption.

[2] In 1950, seven was the required voting majority in the Security Council which, until 1966, had only eleven members.

[3] It should be noted that “Uniting for Peace” did not invent the Security Council’s entitlement to convoke special sessions of the General Assembly. This entitlement is set out in Article 20 of the Charter. Moreover, according to the Assembly’s Rule 8, special sessions of the Assembly convoked by the Council shall be convened within 15 days, and emergency special sessions within 24 hours.

[4] Juridical Yearbook 1964, p. 237.

[5] Juridical Yearbook 1968, p. 185 (for clarity, verbs have been changed to present tense). See also A/C.3/SR.1637, para. 9.

[6] ICJ Reports 2004, p. 136.

[7] The ICJ reaffirmed these positions in its 2010 Advisory Opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, ICJ Reports 2010, p. 403.

[8] Bruno Simma, et al. (eds.), The Charter of the United Nations: A Commentary, 4th edn, 2 vols, Oxford, Oxford University Press, 2024, p. 703.

[9] P. 578.

[10] S/RES/1625 (2005) and A/RES/60/180. The only difference was that the Council resolution included an additional last paragraph deciding that it would remain seized of the matter, whereas the final paragraph of the Assembly resolution decided to include in provisional agenda for its 61st session an item titled “Report of the Peacebuilding Commission”.